[2021] KECPT 490 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.370 OF 2020

DAVID NDICHU KAMATU..................................................................1ST CLAIMANT

STEPHEN NJOROGE..........................................................................2ND CLAIMANT

JOHN KABIRU NJOROGE..................................................................3RD CLAIMANT

BERNARD GITAU................................................................................4TH CLAIMANT

CHARLES KAMAU .............................................................................5TH CLAIMANT

MUKUNGUGU WOMEN GROUP......................................................6TH CLAIMANT

MWIRERI SELF HELP GROUP......................................................7TH CLAIMANT

VERSUS

THE LIQUIDATOR................................................................................ RESPONDENT

RULING

This is our Ruling on the Respondent’s Notice of Preliminary Objection dated 2. 2.2020. Vide the said Preliminary Objection, the Respondent want the Claimant’s Application dated 30. 9.18 and the entire claim be dismissed for the following reasons:

a. That the Tribunal does not have the requisite jurisdiction to entertain the claim,

b. That the claim is time-barred.

Vide the directions given on 5. 2.2020, the Preliminary Objection was canvassed by way of written submissions. The Claimants filed their submissions on 15. 6.2020while the Respondent did so on 27. 11. 2020.

Respondent’s Submissions

Vide his submissions filed on 27. 1.2020, the Respondent has challenge this Tribunal’s jurisdiction to entertain the claim on account of the fact that the issues raised therein relate to cancellation of title. That it is only the Environment and Land Court which has the requisite jurisdiction to do so. He cited the provisions of Section 13 (1)of the Environment and Land Court Act and Section 80 of the Land Registration Actto buttress the Argument.

He also cited the holding of the court in the case of Republic –vs- Gathaite Farmers’ Co-operative Society Limited & another Ex parte Richard Ng’anga Kamiro[2013] eKLR.

That having regard to the pleadings in the claim, the Respondent is persuaded that the claim herein is not one envisaged by Section 76 of the Co-operative Societies, Act (Cap 490) Laws of Kenya.

Claimant’s Submissions

Vide the submissions filed on 15. 6.2020, the Claimant has opposed the Preliminary Objection as follows.

Jurisdiction

On this issue, the Claimants contend that the Tribunal has jurisdiction to entertain the claim on the ground that the dispute emanates from the management and organization of Mukangu Farmers’ Co-operative Society. That as a consequence, any dispute arising therefrom is governed by the provisions of Section 76 of the Co-operative Societies Act. They also cited the decision of the court in the case of Republic - vs- Co-operative Tribunals and 2 others exparte Jackson Wekesa Abala[2019] eKLR.

The Claimants contend that they are members of Mukangu Farmers’ Co-operative Society Limited. That this as members, they purchased property from the Co-operative Society but have not been issued with title deeds as promised. That their demand is for issuance of the title deeds or refund of current market value. That the issue in dispute is thus not whether they are entitled to land but rather whether Respondent has discharged its obligation towards them.

Limitation of Actions

On this issue the Claimants contend that the cause of action arose in the year , 2016 and is thus within the time limited to originate the claim.

Issues for determination

The Respondents Preliminary Objection dated 2. 2.2020 has presented the following issues for determination.

a. Whether the Tribunal lacks jurisdiction to entertain the claim.

b. Whether the claim is time barred.

Jurisdiction

Jurisdiction is everything. Without it, a court downs its tools. This was the holding of the court of Appeal in the case of Peter Gichuki King’ara – vs- IEBC & 2 others, Civil Appeal (Nyeri) No. 23/13.

In the present Preliminary Objection, the Respondent contends that the Tribunal does not have jurisdiction to entertain the claim since the matter relates to cancellation of title to land. That it is only the Environment and land court which is divested with the said jurisdiction.

On the converse the Claimants contend that the matter before the Tribunal relates to the business of Makangu Co-operative Societyand is thus within the ambit of the provisions of Section 76 of the Co-operative Societies Act.

As was held by the court and the case of Charles Keragita Arwenya- vs- Nyakoe Farmers’ Co-operative Society Limited [2010]eKLR,

“ Section 76 of the Co-operative Societies Act provides that any dispute concerning the business of a Co-operative Society and arising among members of the Society or between members and the Society or its committee or any officer of the society shall be referred to the Co-operative Tribunal under section 81(II) of the Act by any party aggrieved by the Order.”

We have perused the statement of claim dated 6. 8.2018. It is apparent that the Claimants are members of Mukungugu Farmers’ Co-operative Society. That vide the said membership, they purchased land from the society. That they made the requisite payments and took possession of their respective plots. That before being issued with title documents, the society was put and/or placed under liquidation. That since then, the liquidator has refused and/or declined to issue the said titles. That the claim is therefore brought against the liquidator to process the said titles.

We have contrasted the Claimants arguments in the claim vis-à-vis those raised by the Respondent in the current Preliminary Objection. Whilst we acknowledge that the ELC Court is the only court with jurisdiction to make a determination on cancellations or revocation of title, we note that the matters raised in the instant claim does not relate to cancellation or revocation of title. It is a matter relating to the business of the society in that the Claimants are seeking to compel the Respondent to complete the process of transfer of plots sold by the society to them. This is the business of the Tribunal as envisaged by Section 76 of Co-operative Societies Act. We thus disagree with the Respondent that we do not have jurisdiction to entertain the claim. We do have it.

Limitation of Actions

Whilst the Respondent raised the issue vide his Preliminary Objection, it did not say much about it in his written submissions. Whilst the Claimants have responded to it, we deem it unnecessary to delve into it in the absence of extrapolation by the Respondent.

Conclusion

The upshot of the foregoing is that we do not find merit in the Respondent’s Notice of Preliminary Objection dated 2. 2.2020 and hereby dismiss it with no Orders as to costs.

Ruling signed, dated and delivered virtually this 25th day of March, 2021.

Hon. B. Kimemia Chairperson Signed 25. 3.2021

Hon. J. Mwatsama Deputy Chairperson Signed 25. 3.2021

B. Akusala Member Signed 25. 3.2021

No appearance for parties

Hon. B. Kimemia Chairperson Signed 25. 3.2021